Next Time, Use Congress to Investigate the President

If recent history is to serve as our guide, we should expect the next investigation-and-impeachment drive to arrive in about two decades’ time. Since the 1970s, Americans have enjoyed a good presidential scandal every 20 years or so. Beware, aspirants of 2036! The southern wind doth play the trumpet to his purposes, and by his hollow whistling in the leaves foretells a tempest and a blust’ring day.

Whenever the next one comes, Americans must demand sweeping changes to the way in which it is handled. More specifically, they must demand that Congress, and not the executive branch itself, be put in charge of the investigations. There is no unaccountable fourth branch of government in the United States. Our repeated attempts to create one — including over the last couple of years — have been disastrous.

The best thing that one can say about the structure of the now-closed Mueller investigation is that it was marginally preferable to the independent-counsel system that obtained during Bill Clinton’s investigation and impeachment. But that is not to say much at all. The problem with the Independent Counsel Act was that, in the words of Justice Antonin Scalia, it aimed “to take away the power to prosecute from the president and give it to somebody who’s not under his control.” The problem with the Mueller investigation was that it aimed to take away the power to prosecute from the president and give it to somebody who was under his control. Or, put another way, that it required the head of the executive branch of government to use that branch to investigate himself. That this yielded an array of absurd outcomes — as well as an unhealthy dose of daily panic — should surprise nobody.

It is a slight on neither the integrity nor the professionalism of Robert Mueller to observe that he and his team were put in an impossible — nay, ridiculous — position from the start. In no other circumstance is the subject of an investigation able to fire his auditor should he so wish. In no other circumstance is the subject of an investigation able to retain full hiring and firing privileges over the team charged with his evaluation. In no other circumstance is an investigator asked to proceed with an inquiry without knowing whether his work is even allowed to provoke an indictment. By the same token, it serves as no defense of the president to observe that he, too, was placed into a frustrating and preposterous predicament, within which even the most innocuous uses of his power were evaluated as potential crimes. Like Mueller, President Trump was placed into a ridiculous position. That he behaved ridiculously was foreordained.

That we are now ignoring the bombshell “collusion” charge that has dominated political coverage since early 2017 and arguing instead over the White House’s conduct during the investigation was predictable. A good portion of Mueller’s report is dedicated to answering the secondary question of whether President Trump “obstructed justice” during the process. But there was never any chance that Mueller and his team would be able to meaningfully interrogate that question in the same way that they interrogated the collusion question. By definition, obstruction of justice is less an act than an intention; to prove it, one has to establish that a given decision was not only taken, but that it was taken in order to corrupt. In a traditional criminal context, this is difficult enough; within the American presidency, it is nigh-on-impossible. As the sole head of their branch, presidents are able to fire pretty much anyone for pretty much any reason, as well as to determine how resources should be used, and to decide on what executive employees should and should not focus. With the exception of per se illegal actions (e.g. perjury or bribery), one needs to be a mind-reader to separate out the quotidian from the pernicious. There is a reason that we do not let people investigate themselves.

A common refrain in the days since the report’s release has been, “Sure, the system is flawed, but that is not an excuse for the way in which President Trump behaved.” But the American political system is premised upon the Founders’ understanding that human nature is immutable, that ambition is not limited to any one era or one faction, and that our institutions work best when they assume that men will behave badly. “Well, the president just shouldn’t . . .” is not a workable or helpful suggestion. If the system by which we investigate presidents relies upon those presidents “doing the right thing,” then that system needs to change.

How? Congress must take over.

The usual response to this proposal is that Congress is not set up to run the sort of investigation that Robert Mueller just concluded. And perhaps it is not, at present. But, if it wanted to be, it could be. Congress, remember, created the agency for which Mueller works. If, going forward, Congress sought to take on those functions itself when the target was the president, it could do so with impunity. Congress can set its own budget. It can create its own committees. It can hire as many staff as it wishes. It can subpoena whomever it wants, at any point, and for any reason. The possibilities are practically endless. “We haven’t done that yet” is not a solid excuse.

Better still, as a separate branch of government, Congress can run its investigations without any fear of executive interference — and thus without any fear of “obstruction of justice.” Had Congress decided to look into the Trump campaign and its relationship with Russia, nobody would ever have asked whether its investigators would be fired or whether the White House would limit the necessary resources or whether executive staff were exhibiting loyalty to the country or to their boss. There would have been no confusion as to which actions were taken in good faith and which were not. And, most crucially of all, there would have been no fights over whether the investigation should or should not recommend charges, or discussions about whether a sitting president can be indicted. It has been argued by both Trump’s supporters and critics that the core problem with the Mueller investigation was that it focused too heavily on whether Trump had committed a crime. Because the punishment meted out by Congress is impeachment, and because impeachment is ultimately a political rather than a legal process, the hyper-legalism that stained the Mueller affair would have been replaced with a set of better questions — and, perhaps, with a set of more appropriate expectations.

Defenders of the status quo argue that, while the present system may be clunky in theory, it works fine in practice because the various actors are still bound by political considerations. This, of course, is correct. Had Trump fired Robert Mueller, the ultimate fallout would have been political rather than legal in nature. But if clear political accountability is so devoutly to be wished for, then why not go all the way? It is difficult to imagine a cleaner arrangement than for one branch openly to investigate another. The actors are clear, as are their positions and their motivations. The lines of authority are clear. And, crucially, the politics are clear. At its own political risk, Congress can begin an investigation, and act or decline to act upon its results. At his own political risk, the president can cooperate, stonewall, complain, protest, or what he will. There is no risk of descending into purely legalistic thinking, nor much risk of a perpetual flitting between legal and moral arguments.

Our political system is explicitly designed to ensure that all power remains under the ultimate control of elected figures. That alleged malfeasance by one of those elected figures can present lawmakers with a series of gut-wrenching choices is unfortunate. But their discomfort does not create an exception to this rule. There can be no such thing as an independent investigation into a branch of the U.S. government. When the players are all politicians, there is no way of avoiding politics.